BOARD DATE:	  23 May 2013

		DOCKET NUMBER:  AR20120018165 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests the record of her former husband, a former service member, be corrected to show her as the eligible former spouse beneficiary for his Survivor Benefit Plan (SBP) annuity.  

2.  The applicant states she should be reinstated as the former spouse beneficiary for the FSM’s SBP annuity in accordance with the terms of their divorce decree.  She claims her SBP beneficiary status was terminated without her knowledge and is in contravention to the terms of their divorce decree.   

3.  The applicant provides a letter from counsel and the supporting documents identified in that letter in support of her request.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the FSM’s record be corrected to show the applicant as the former spouse beneficiary for his SBP benefits.  

2.  Counsel states the FSM terminated SBP coverage for the applicant in violation of the divorce decree.  

3.  Counsel provides the documents identified in his letter in support of this application.  



CONSIDERATION OF EVIDENCE:

1.  On 15 June 1975, the applicant and FSM were married in Newburgh, New York.  On 30 June 1995, the FSM was honorably retired.  There are no SBP election documents in the record; however, his retirement approval memorandum indicates he elected full spouse coverage and the applicant was his spouse at the time. 

2.  On 26 February 2003, District Court of Leavenworth County, Kansas, stipulated the matters of property, debts, and maintenance were unresolved and the court maintained jurisdiction for a later decision regarding these issues.  

3.  On 22 July 2003, the court approved a Qualified Domestic Relations Order Dividing the Military Retirement account which was incorporated into the divorce decree.  It stipulated that the applicant and FSM had made an irrevocable election to designate the applicant as the beneficiary for SBP benefits. 

4.  The record is silent on further SBP transactions between the FSM and the Defense Finance and Accounting Service (DFAS).  

5.  The applicant provides a letter to DFAS authored by the FSM on 28 October 2005.  In this letter, the FSM requested SBP coverage for his former spouse and indicated that at that time his son was the sole beneficiary; however, he was required to name his former spouse as beneficiary in accordance with a “Qualified Domestic Relations Order Dividing Military Retirement Account” completed in conjunction with his divorce and incorporated into the divorce decree.  There is no response from DFAS in the record or provided by the applicant.  

6.  On 27 August 2012, the FSM died at the age of 58.  The death certificate shows his status as divorced.  

7.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  Title 10, U.S. Code, Chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.



8.  Title 10, U. S. Code, Section 1448(b) (3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within 
1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to correct the FSM’s record to show a former spouse SBP election was made within 1 year of their divorce has been carefully considered.  Although the applicant and FSM did not comply with the requirement to submit a former spouse election and the applicant failed to request a deemed election within 1 year of their divorce there are equity considerations in this case that should be considered given continued SBP protection was court ordered and the FSM was divorced at the time of death. 

2.  The evidence of record confirms the applicant and FSM were divorced on    26 February 2003, after nearly 28 years of marriage.  The divorce decree, including the 23 July 2003 incorporated Qualified Domestic Relations Order Dividing the Military Retirement Account, stipulated the applicant would remain the beneficiary for the FSM’s SBP benefit.  Further, the FSM acknowledged this in his 2005 correspondence with DFAS.  In fact, it appears he did try to comply but that his 2005 request was rejected as untimely.  

3.  In view of the foregoing, given there is no current spouse beneficiary, it would be appropriate and serve the interest of equity to correct the record to show a former spouse SBP election was processed and accepted within 1 year of their divorce, and provide the applicant the SBP annuity.  All premium costs associated with the election change will be borne by the applicant.

BOARD VOTE:

_x____  ___x_____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing a former spouse election was processed and accepted within 1 year of the divorce; and providing the applicant an SBP annuity from the day after the FSM’s death.  Any premium costs associated with this election and the coverage change will be borne by the applicant.




      _______ _   x_______   ___
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120018165



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ABCMR Record of Proceedings (cont)                                         AR20120018165



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